Justice Thomas breaks silence and what he said has powerful implications

February 29, 2016

Supreme Court Justice Clarence Thomas today broke his ten-year silence from the bench, and when he did, according to the New York Times, he asked a question that could have powerful implications for the Second Amendment.

In a question to Ilana Eisenstein, assistant solicitor general who was arguing about a federal ban on gun ownership for anyone convicted of misdemeanor domestic violence, Thomas may have lit a fuse. It was a question transcribed by the Huffington Post and it is a thorny issue for some civil rights activists.

“Can you give me another area [of law] where a misdemeanor violation suspends a constitutional right?” Thomas reportedly asked.

According to the HuffPo, “A strange silence fell over the courtroom.” Justice Thomas, who has been one of the stalwart conservatives on the high court, probably knew the answer already. It was the same kind of question that Congressman Trey Gowdy (R-SC) asked last fall of a spokeswoman from the Department of Homeland Security about a proposal to prevent people who were placed on a no-fly list from being able to purchase a firearm.

The official explained that there is an appeal process, but that only happens after someone finds out their name has been added to the list. That is a major stumbling block for Second Amendment advocates because nobody can explain how one gets their name on the list, or how to get their name off of it. In the meantime, that individual’s Second Amendment rights are essentially suspended.

This prompted Gowdy to demand, “Is there another Constitutional right that we treat the same way for American citizens than we do the Second Amendment? Can you think of one?”

To keep things in perspective, nobody wishes to arm domestic abusers or terrorists. But that’s not the point. The issue is whether someone can be stripped of their right to keep and bear arms, essentially forever, for a misdemeanor state level conviction, or no conviction at all?

According to the HuffPo story, liberal Justice Stephen Breyer apparently tried to intervene in Thomas’ rare questioning. Breyer contended, the story said, that there is no present need to decide a “major question” of constitutional law. This is where Second Amendment advocates and their attorneys might wonder why not?

Ever since the Lautenberg Amendment was adopted by Congress 20 years ago, it’s illegal for anyone convicted of a domestic violence misdemeanor to own or possess a firearm or ammunition. This is different from the law prohibiting people under protection orders from having guns or ammunition, even though they have not been convicted of a crime.

Why is the Second Amendment treated differently from other constitutionally protected fundamental rights? To exercise it, one needs clearance from the FBI. There are groups that believe anyone exercising the right to keep and bear arms should be required to have a license and have their firearms registered. Many gun control proponents want to limit the number and type of firearms people can own. Others demand that they be required to store them in certain ways, under lock and key.

There are even some anti-gunners who want to limit the right to the confines of one’s home. They oppose concealed or open carry for personal protection.

True to the theory that someone who doesn’t speak much is always listened to when he does, when Thomas questioned Eisenstein today, his words set off tremors, not just because he spoke, but because of what he asked. What other civil right is treated like the Second? With due respect to Justice Breyer, this might very well be the time to answer that question.

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